In re the Matter of Kenneth Alan Hovland, OBO Minor Children, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1653

In re the Matter of Kenneth Alan Hovland,
OBO Minor Children,
Respondent,

vs.

Ryan Richard Jazdzewski,
Appellant.

Filed June 22, 2020
Affirmed
Florey, Judge

St. Louis County District Court
File No. 69DU-FA-19-460

Terri Port Wright, Port Wright Law Office, Cloquet, Minnesota (for respondent)

Paul T. Shaffer, Shaffer Law Office, Duluth, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Florey, Judge; and John Smith,
Judge.*
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Following a hearing on and issuance of an order for protection (OFP) against
appellant, appellant challenges (1) the district court’s granting of respondent’s motion for

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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a continuance and (2) the district court’s finding that appellant’s children were sufficiently
fearful of him to warrant the OFP. We affirm.
FACTS
In June 2019, Ryan Jazdzewski had a physical altercation with his wife that resulted
in her death. The altercation occurred in their home, which was also the home of their
three minor children —all of whom were present in the home at the time of the incident.
Jazdzewski was eventually charged with and convicted of second-degree murder.
On the night of the attack, police contacted the children’s paternal grandparents —
Jazdzewski’s parents—and allowed them to take temporary custody of the minor children.
Three days later, the children’s maternal g randparents were appraised of what had
happened and custody of the children was turned over to them and with whom it has
remained.
The issue in the instant appeal concerns an emergency ex parte OFP that was issued
on June 5, 2019, on behalf of the children. The hearing on whether to grant that OFP was
scheduled for June 12, at which time the parties appeared and agreed to continue the matter
for 90 days. They agreed to this continuance in order to “allow the criminal case to be
sorted out” and “see a direction on where to go in this matter.”
On September 18, 2019, respondent’s counsel requested an additional continuance,
arguing that they were under the impression that the hearing was not a full evidentiary
hearing, but a review of the June 12 continuance and the circumstances that led the parties
to agree to that 90 -day delay. As a result, respondent argued, they were not prepared to
proceed with a full hearing on the OFP. Jazdzewski objected, citing Minn. Stat. § 518B.01,

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subd. 5 (2018), as grounds . The court granted respondent’s request for continuance,
reasoning that the 13 days requested was reasonable given that the statutory timelines
Jazdzewski cited had already lapsed. The court also noted that “all parties need to have a
chance to be here with counsel of their choice, fully prepared to proceed.” The hearing
was held on October 1, and the court issued the OFP on October 9. On appeal, Jazdzewski
argues that the district court did not have the authority to grant respon dent’s request for a
second continuance and challenges a finding of fact supporting the district court’s issuance
of the OFP.
D E C I S I O N
I.
“The decision to grant or deny a continuance falls within the district court’s broad
discretion” and will not be disturbed unless the decision was a clear abuse of that discretion.
Gada v. Dedefo, 684 N.W.2d 512, 513-14 (Minn. App. 2004). “[T]he burden of showing
error rests upon the one who relies upon it.” Loth v. Loth , 35 N.W.2d 542, 546 (Minn.
1949).
Here, Jazdzewski concedes that the applicable law is not supportive of his position.
Nevertheless, he argues that he is entitled to relief because the district court failed to abide
by section 518B.01, subdivision. 5(e), which states that the court must hold a hearing on a
requested OFP within five days of the date the petition was filed . Jazdzewski
acknowledges that this subdivision allows the parties to agree to a different timeframe and
that the parties did so here—referring to the first continuance lasting 90 days. But he argues

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that the second continuance—that lasted 13 days—was not agreed to and that the court
therefore ran afoul of subdivision 5(e) by granting it.
In support of his argument, Jazdzewski cites the supreme court’s 2001 decision in
Burkstrand v. Burkstrand , 632 N.W.2d 206 (Minn. 2001). While Jazdzewski
acknowledges that the Burkstrand majority held that there are no jurisdictional
consequences to a court’s failure to abide by the timelines in this subdivision, he urges this
court to “careful ly consider the dissent of Justice Gilbert ” and explains why he believes
that rationale should prevail here. Id. at 213. We are not persuaded.
Pursuant to the express provision in section 518B.01, subd. 5(e), the parties
mutually agreed to continue the first hearing for 90 days. Having stipulated to a hearing
date beyond the statutory timeframe, the grant of any further continuance on the second -
scheduled hearing was a matter within the district court’s discretion, and we cannot
conclude that the district court abused that discretion by granting an additional 13 -day
continuance to account for the reasonable misunderstanding between the parties as to the
purpose of the second hearing. Gada, 684 N.W.2d at 513-14.
Moreover, even if we were to conclude that the second continuance was a technical
violation of the statute, Burkstrand made clear that there are no consequences implicating
the court’s jurisdiction for violations of the statute, and Jazdzewski has not shown, nor has
he attempted to argue, that he suffered any harm or prejudice as a result of the alleged
violation. See Burkstrand, 632 N.W.2d at 213; Kallio v. Ford Motor Co., 407 N.W.2d 92,
98 (Minn. 1987) (“Although error may exist, unless the error is prejudicial, no grounds
exist for reversal.”). Finally, to the extent that the analysis proffered by Justice Gilbert in

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his Burkstrand dissent would compel a different result, that is a dissent—not the controlling
law to which we are bound. State v. Curtis , 921 N.W.2d 342, 346 (Minn. 2018) (“The
court of appeals is bound by supreme court precedent . . . .”).
II.
Jazdzewski also challenges the OFP on the grounds t hat a requisite finding of fact
was not supported by sufficient evidence. More specifically, he argues that the testimony
of a social worker and the children’s maternal grandfather, upon which the district court
relied for its findings of fact, did not provide sufficient evidence to support that the children
were in fear of imminent harm from him.
We review a district court’s decision to issue an OFP for an abuse of discretion.
Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009). An abuse of discretion
occurs where the distri ct court’s findings are “unsupported by the record or [where] it
misapplies the law.” Id. (quotation omitted). An OFP is justified where the person against
whom it is issued “manifests a present intention to inflict fear of imminent physical harm,
bodily injury, or assault.” Id. at 99.
At the OFP hearing, when counsel asked the social worker who worked with the
children after the murder whether the children had expressed fear of their father while in
the social worker’s care, he answered in the affirmati ve. The children’s maternal
grandfather, who had custody of and cared for the children after the event, answered a
similar question in the affirmative and explained that he believed the children were fearful
of their father because they “are deathly afrai d of blood . . . . They are deathly afraid of
dying.” While Jazdzewski argues that this testimony alone is insufficient evidence for the

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district court to have found as it did, we need not consider whether this testimony could be
sufficient in and of itse lf, because the testimony is not the only evidence upon which the
district court relied.
In addition, the district court had before it, per an agreement between the parties, a
copy of the criminal complaint for the case in which Jazdzewski was charged wi th the
murder of his wife. The complaint alleged a number of disturbing facts. For example,
when responding officers approached Jazdzewski’s house, they observed his seven -year-
old daughter exit the residence with “blood on her shirt and shorts, as well as blood all over
her arms and legs.” She approached the officers until Jazdzewski, who “was also covered
in blood,” followed her outside, at which point she ran back to him and said to the officers
“don’t kill him.” The seven -year-old told the officers that her parents had been fighting
and that “she is dead” —referring to her mother. Officers found the children’s mother on
the kitchen floor surrounded by blood on the floor and walls with “multiple stab wounds
on her torso.” The complaint also alleged t hat Jazdzewski later estimated he stabbed his
wife 10 to 12 times and that he only stopped because his older daughter, who was in the
kitchen during the stabbing, said “don’t kill mom.” Finally, in addition to the testimony
and the criminal complaint, the district court based its finding that the children were in fear
of imminent harm on an adverse evidentiary inference drawn, at the request of counsel,
from Jazdzewski’s election to plead his Fifth Amendment Right against self-incrimination
and refusal to answer any substantive questions as to the events of that day.
In the section of his brief arguing that the district court had insufficient evidence to
find that the children feared imminent bodily harm from him, Jazdzewski does not address

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the district court’s use of the criminal complaint or the adverse evidentiary inference in its
rationale. Given that the district court based its factual finding on (1) a criminal complaint
to which Jazdzewski stipulated —wherein at least two of his children either watch ed him
repeatedly stab their mother or witnessed the scene shortly after the fact; (2) Jazdzewski’s
refusal to answer questions in a non -criminal proceeding; and (3) testimony, which was
found credible, from two individuals who had close contact with the c hildren after their
father murdered their mother; we cannot conclude that the district court abused its
discretion in finding that Jazdzewski’s children were fearful of imminent physical injury
or bodily harm from him.
Affirmed.